5.  The applicant was born in 1961 and is currently detained in Straubing Prison.
6.  On 23 February 1996 the Munich I Regional Court acquitted the applicant of, inter alia, six counts of assault, nine counts of dangerous assault, of sexual assault and of procuring for lack of criminal responsibility and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 46 below).
7.  The Regional Court found that between 1991 and 1995 the applicant, who had previously been convicted, in particular, of several counts of assault in Romania and Germany, had committed the offences he had been charged with. The applicant was found, in particular, to have violently threatened with a gun and knife, hit and attempted to strangulate his wife, partly using dangerous instruments or teargas, on a number of occasions. He inflicted on his wife multiple injuries including fractures of her jaw, cheekbones, nose and skull, snags to her nose and genitals as well as lacerations, bruises and swellings all over her body. He had further forced his wife to prostitution for his own material benefit, had forced her to dance naked for an acquaintance and had chased her naked in a forest. Moreover, he had assaulted and sexually assaulted his female friend and a relative of his wife with whom he had an intimate relationship (fettering the latter naked to a tree, urinating on her and introducing fir cones into her rectum and vagina).
8.  The Regional Court, having consulted three medical experts, found that the applicant suffered from a brain disorder, a borderline personality disorder manifesting itself in emotional instability and a paranoiac jealousy and had partly been drunk during his acts. Owing to his pathological mental disorder, it could not be excluded that he had acted without criminal responsibility. The Regional Court further considered that the applicant was to be placed in a psychiatric hospital as he was liable to commit further serious offences and was therefore dangerous to the public.
9.  Following the Regional Court’s judgment, the applicant was placed in different psychiatric hospitals. From 23 February 1996 onwards, he was in Haar psychiatric hospital, from 7 February 1997 onwards in Straubing psychiatric hospital, from 26 October 1999 onwards in Düren psychiatric hospital and from 5 April 2000 onwards in Bedburg-Hau psychiatric hospital. Following his escape from that clinic in October 2002, he was again detained in Düren psychiatric hospital from 18 December 2002 onwards and subsequently in Lippstadt psychiatric hospital. His detention in a psychiatric hospital was confirmed yearly by the competent Regional Court.
10.  On 22 November 2005 the city of Düren ordered the applicant’s expulsion to Romania after he had renounced German nationality in February 2004. The decision became final.
11.  On 9 February 2007 the Paderborn Regional Court terminated the applicant’s detention in a psychiatric hospital ordered by the Munich I Regional Court on 23 February 1996 (Article 67d § 6 of the Criminal Code, see paragraph 42 below). It further delivered its decision, taken the day before, to order the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively.
12.  Having heard evidence from a psychiatric expert, K., who had examined the applicant in person, the Paderborn Regional Court found that the applicant suffered from a personality disorder with paranoiac and dissocial elements. However, that disorder did not exclude or diminish his criminal responsibility. His continued dangerousness for women, in particular for his ex-wife, did not result from a pathological mental disorder but from his chosen attitude towards women.
13.  The applicant was accordingly transferred from the psychiatric hospital to prison.
14.  On 30 July 2008 the Munich I Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraph 41 below), which it considered compatible with the Basic Law, ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung).
15.  The Munich I Regional Court noted that, as required by Article 66b § 3 of the Criminal Code, the Paderborn Regional Court had terminated the applicant’s placement in a psychiatric hospital on 9 February 2007 pursuant to Article 67d § 6 of the Criminal Code.
16.  The Regional Court further found that the requirements of Article 66b § 3 (1) of the Criminal Code were met. The Munich I Regional Court had ordered the applicant’s placement in a psychiatric hospital in February 1996 as the applicant had committed, inter alia, several counts of dangerous assault, an offence listed in Article 66 § 3 of the Criminal Code.
17.  Furthermore, the Regional Court considered that a comprehensive assessment of the applicant, his offences and his development during his placement in the psychiatric hospitals revealed that it was very likely that, if released, he would again commit serious offences, similar to those following which he had been placed in a psychiatric hospital, against women related to him, resulting in considerable psychological and physical harm to the victims (Article 66 b § 3 (2) of the Criminal Code). It noted that both psychiatric experts it had consulted had convincingly diagnosed the applicant with a dissocial personality disorder necessitating therapy, and one of them, in addition, with sexual sadism, without his criminal responsibility being diminished or excluded thereby. Expert H., in particular, had considered that the applicant suffered from a combined personality disorder with dissocial, psychopathic, paranoiac and emotionally unstable elements and had formerly abused alcohol. Expert S. had found, in particular, that the applicant was a psychopath.
18.  The Regional Court considered that the applicant’s offences disclosed a violent, degrading and partly sadist attitude towards women which had not changed during his placement in different psychiatric hospitals. The preventive detention of the applicant, who had a propensity to commit serious violent offences, was proportionate. In particular, the applicant’s planned departure to Romania was irrelevant in that respect because Article 66b § 3 of the Criminal Code served to protect potential victims not only in Germany, but also in other States including Romania.
19.  On 1 August 2008 the applicant lodged an appeal on points of law which he reasoned on 13 October 2008. He argued that Article 66b § 3 of the Criminal Code and the decisions ordering his preventive detention retrospectively, which were based on that provision, violated his right to liberty and were thus incompatible with the Basic Law and with Article 5 § 1 of the Convention.
20.  On 13 May 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded.
21.  On 4 June 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued that the retrospective order for his preventive detention, based on Article 66b § 3 of the Criminal Code, violated his right to liberty under Article 2 § 2 of the Basic Law. It also disproportionately interfered with that right because his expulsion to Romania would have been as effective as his detention in order to protect potential victims in Germany while interfering less with his fundamental rights.
22.  On 4 November 2009 a chamber of three judges of the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1237/09).
23.  According to the Government, in Straubing Prison, five doctors, five psychologists, four educationists and nine social workers offer help to detainees (it has not been specified for how many detainees these staff members were responsible). Sexual and violent offenders may be transferred to a suitable social therapeutic institution if their reintegration into society may be better furthered thereby. If a group therapy proves unsuitable, they may be offered an individual therapy. There are additional courses aimed at preventing further offences on release, including anti‑aggression, anti-violence and reasoning and rehabilitation training. Furthermore, detainees who committed their offences under the influence of alcohol or drugs are offered addiction counselling.
24.  The applicant had initially not been ready to apply for his transfer to Straubing Prison’s social therapeutic institution which, according to the prison therapists, would offer him a suitable social therapy for sexual offenders. He claimed to be a violent offender in the first place and to have undergone a sexual therapy already in the psychiatric hospitals. The Erlangen prison authorities later refused the applicant’s request dated 14 September 2009 to be admitted to its social therapeutic institution for violent offenders. It argued that he did not fit into the institution’s therapeutic concept targeted at offenders sentenced for offences of an average gravity. The applicant did not apply to be admitted to another social therapeutic institution in Kaisheim Prison. He further did not apply for any training courses or addiction counselling.
25.  The applicant has been working in Straubing Prison. He received a visit from his sister once, spoke to his mother on the phone regularly and exchanged letters with her and with two other acquaintances. He has not received any relaxations in the conditions of his detention in view of the enforceable expulsion order against him.
26.  On 29 October 2009 the Regensburg Regional Court dismissed the applicant’s request to declare his preventive detention unlawful. On 11 December 2009 the Nuremberg Court of Appeal dismissed the applicant’s appeal.
(b)  Second set of proceedings
27.  On 4 November 2010 the Regensburg Regional Court dismissed the applicant’s request of 5 June 2010 to declare the execution of his preventive detention unlawful. It found, in particular, that the judgment of the European Court of Human Rights of 17 December 2009 in the case of M. v. Germany (no. 19359/04, ECHR 2009) did not constitute a bar to the execution of the judgment in the applicant’s case. That court’s judgments were only binding between the parties to the proceedings in the case of M. v. Germany, which had, moreover, concerned a different subject-matter.
28.  On 13 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal. It took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue had to be dealt with in review proceedings under Article 67e of the Criminal Code (see paragraph 45 below). In those proceedings, it had to be examined whether, owing to specific circumstances relating to his person or his conduct, it was highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released.
(c)  Third set of proceedings
29.  On 13 October 2011 the Regensburg Regional Court, in review proceedings under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 44-45 below), declared the applicant’s preventive detention ordered by the Munich I Regional Court on 30 July 2008 terminated and ordered the applicant’s supervision of conduct.
30.  The Regional Court noted that in her report dated 15 August 2011, psychiatric expert L. had considered that the applicant suffered from a personality disorder with paranoiac, dissocial and narcissistic elements and from emotional instability. There was a risk of 44 per cent that the applicant would commit further violent offences against a person related to him in the seven years to come if released. The applicant therefore suffered from a mental disorder within the meaning of the Therapy Detention Act. However, in the Regional Court’s view, there was not a high risk, owing to specific circumstances relating to the applicant’s person or conduct, that he would commit the most serious crimes of violence or sexual offences if released. The requirements set up in the Federal Constitutional Court’s judgment of 4 May 2011 for a continuation of the applicant’s retrospective preventive detention, which applied a fortiori in a case like that of the applicant who had initially been acquitted for lack of criminal responsibility, had therefore not been met.
31.  On 19 December 2011 the Nuremberg Court of Appeal, allowing the prosecution’s appeal, quashed the decision of the Regensburg Regional Court and ordered the applicant’s preventive detention to continue. Contrary to the Regional Court, it considered that under the Federal Constitutional Court’s judgment of 4 May 2011, it was sufficient for preventive detention ordered under Article 66b § 3 to continue if there was a risk, owing to specific circumstances relating to the applicant’s person or conduct, that the person concerned would commit serious crimes of violence or sexual offences. These requirements were met in the applicant’s case. It was not necessary that there was a high risk of the most serious crimes of violence or sexual offences or that the applicant suffered from a mental disorder. These requirements applied only to the (different) cases of preventive detention with retrospective effects which had been at issue in the Federal Constitutional Court’s judgment.
32.  On 4 November 2010 the Straubing District Court, having heard the applicant in person, dismissed the request made by the city of Straubing to order the applicant’s placement in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 47 below). It found that the disorder the applicant suffered from was not so serious as to affect the applicant’s free will. Consequently, the requirements for his detention under Article 1 § 1 of the Bavarian (Mentally Ill Persons’) Placement Act were not met. It was not the purpose of the said Act to authorise the detention of all persons suffering from a mental disease or to close gaps in the provisions on preventive detention.
33.  On 3 January 2011 the Straubing Prison authorities lodged a request with the Regensburg Regional Court to order the applicant’s detention under Article 1 of the Therapy Detention Act (see paragraph 48 below).
34.  On 24 October 2011 the Regensburg Regional Court ordered the applicant’s provisional detention for a maximum period of three months under the Therapy Detention Act from the moment the termination of the applicant’s retrospective preventive detention became final. It noted that the psychiatric experts H. and L. had found in their reports, drawn up on the basis of the case-file alone, that the applicant suffered from a personality disorder with dissocial, psychopathic / narcissistic and paranoiac elements and emotional instability. He had previously abused alcohol. He might suffer, in addition, from sexual sadism. The experts had considered that there was a high and a medium to high risk respectively that the applicant would commit further violent offences, in particular against persons closely related to him, if released. The court, endorsing the experts’ findings, therefore considered that there were grounds for concluding that the requirements for the applicant’s detention under the Therapy Detention Act were met.